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tv   America the Courts  CSPAN  July 24, 2010 7:00pm-8:00pm EDT

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the former naacp president, political commentators, and the co-author of "by the color of our skin." reagan brooks describes how on- line tools like social networks are used to promote the progressive agenda. "washington journal" live at 7:00 a.m. eastern on c-span. . >> i worry about journalistic integrity. >> that is sunday evening. this weekend on "book tv, sunday at 1:00, the reading festival. authors talk about their books on fdr, his policy, and his legacy.
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after that, a new book about coming to the united states and a life she left behind. that is on c-span2. for the complete schedule, go to booktv.org. >> the senate judiciary committee voted tuesday to approve elena kagan's supreme court nomination. the nomination is pending before the full senate. some democrats have called for the vote be taken before the august recess. here are some of the senator's remarks and the vote by the judiciary committee. we begin with chairman pat leahy and ranking member jeff sessions. this is about one hour. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> good morning. i would note before we start, at the end of this hearing, we were all trying to rearrange things
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so many of us, both parties, could attend the funeral of the longest-serving member of the united states senate, senator byrd, and many members of this committee were there. i know that in the i know that senators cardin and schumer and kaufman stepped in to take the gavel. i want to thank them especially, but i want to thank all senators, republican and democratic alike, for the amount of time that you spend here. democratic senators alike, for the amount of time you spend here. i should note, at the sake of
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possibly embarrassing him, that i'd actually stepped out prior to the end there, with the outside witnesses because some of the things i was going to have to be doing in connection with the funeral. senator sessions sat through all of that. no member of this committee spent more hours on the hearing than jeff sessions did. i would also note that, for those of us who attended the funeral and had the ability to attend the funeral, we could not have done that, had it not been for the cooperation of senator sessions who quite properly was protecting the rights of every member on his side of the aisle, as he should, i'd expect him to. still, was -- helped us work a schedule, so that so many of us could be at the funeral. and, jeff, this has nothing to do with the merits of the situation, but i just want to
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publicly thank you for your help on that, and the time you spent on that. and we will note, today, we'll be voting on the nomination of elena kagan to be associate justice of the u.s. supreme court. i outline my standards for continuing this nomination last week, and said i would vote for her. she is a highly experienced person. i wish that her nomination to the d.c. circuit court of appeals allowed her to go forward when she was nominated by president clinton, and she would have had that experience, too. but she was a -- sheas been the dean of the most prestigious -- one of the most prestigious law schools, being a georgetown graduate, i'll say one of the most prestigious law
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schools in this country. and, of course, being solicitor general. and i note that she's received the highest possible rating from the american bar association standing committee on the federal judiciary. her credentls and legal abilities have been extolled by many from across the political spectrum, praised by justice sandra day o'connor. justice antonen scalia. michael mcconnell, kenneth starr, miguel estrada. like wliam rehnquist, hufelix black and hugo, the solicitor general cage didn't not srve in
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the judicial monastery, but would say her workouts is probably an additional qualification. i spoke about the qualities that led me to support her nomination last week. throughout the process, i looked to see whether the solicitor general kagan would fairly apply the law while also using common sense. i looked to see whether as a justice she would appreciate the proper role of the courts with democracy, and ting to determine whether she understood why the law matters. in fact, what i raised with her was basically what i had done in my consideration of every single member who is now sitting on the supreme court. and my consideration in voting on several members who are no longer on the preme court. and that is would she be the kind of independent justice who would keep pace with each of the words ascribed in vermont marble
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on the walls of the supreme court, "equal justice under law." those apply to every supreme court nomination, including six justices dominated by republican presidents, each of whom i've voted for. solicitor general kagan demonstrated an impressive knowledge of the law and fidelity to it. she spoke of judicial restrain, respect to the constitution. her commitmento the constitution and rule of law. she makes clear the law and constitution, not politics or ideological agenda. i wasstruck that after "the wall street journal" editorialized last tuesday morning that she pledged to recuse heelf in cases in which she was not involved as the solicitor general of the united states, several members of the committee took up that matter. i thought each case in accordance with the law was the
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right one is a pledge we have asked of both republican and democratic nominees to the supreme court. certainly, during my 36 years here. in fact, i note on the issue of recusal, the committee questionnaire that senator sessions and i included a recusal question at the outset of this process in may. and she responded. i asked her about recusal in my opening round of questions, she responded. when senator colburn asked her whether she was advised on the health care reform bill, she responded she did not. senator sessions qted testimony that she would recuse herself in cases in which she played a kind of substantial role. in the subsequent written question which she has every right to send two weeks ago, he asked her an eight-part question
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about recusal, and she answered that two weeks ago. i note that when "the wall street" editorial page which -- they have a right to do, it's an independent paper. it's always heavily republican in its outlook. when they raised the issue last tuesday of recusal, it suddenly became a major issue. and then we start hearing about questions about whether she's going to recuse herself in cases in which she's not required to recuse herself under the canons of judicial ethics. in fact, one senator asked her to recuse herself on matters, even if she had not been involved as solicitor general. of course, that is -- that would
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be a requirement that has never been required of anybody, democratic nominee or republin nominee. every nominee has been asked in one form or another, will they follow the canons of judicial ethics and recusals? and she has been made clear, her strong commitment to follow federal recusal standards. she as stated in plain language she had no substantive involvement in health care reform, the underlying legal and constitutional issues. now, each is going to make out his or her mind how they're going vote, but let's at least realize she's answered these questions and answered them under oath. i spoke to the senate more than a month ago about elena kagan's actions as dean in honoring harvard law school's
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long-standing policy in discriminatory hiring. no document has challenged that statement. elena kagan respects and admires military men and woman. as the father of one who served proudly in the service of this country, as a member of the united states marine corps, that was of particular importance to me. and we've now received letters abdomen testimony from harvard law veterans with direct knowledge, and talk about her support for them. i do not contend for those who recently filibustered veterans' benefits and threatened to filibuster legislation authorizinthe department of defense program and activities. i don't contend by veterans benefits or department of defense programs are not going to say that they're anti-military. but they should not at the same time filibustering those issues
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consented that she's anti-military. her actions demonstrate a respect for the law and our lel system, by seeking to work with it. and finally, i want to thank senators durbin and cardin for their remarks in justice marshall in the hearing. i conder it a real privilege after i became a united states senator to meet justice marshall. and to get a chance to talk with him. and i was deeply disappointed, this giant of american law whose life was devoted to all americans was a subject of despairagement during these proceedings. he should not be by the texas law review, elena kagan recalled how justice marshall's law clerks had tried to get her rely to allow an appeal to proceed then on a discrimination claim.
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she wrote at that 80-year-old justice referred to his years trying civil rights cases. said all he could hope for is that a court would not rule against you for legitimate reasons, but that you could not expect the court to bend the rules in your favor. and i agree with him on that. that's why i voted for many justices of the supreme court, and many judges, who might not share my philosophy, but i know that they'll be fair. and i will always use the same thumbnail idea that, if i walked into their courtroom, as either plaintiff or defendant, would i be treated the sa? and that's all you can ask. justice sir thomas moore reminded the senate on that passage man for all seasons," the law is our protection. justice clark reminded us that the rules of law that best
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protects us for all, including the least powerful. elena kagan concluded as i do that justice marshall believed devoutly in the rule of law. he was a man of the law in the highest sense. he understood the constitution's promise of quality to its core. i believe that she does too. senator sessions? >>hank you. mr. chairman. i've got to say, you'veushed us hard. sometimes, we didn't want to go as fast as you pushed us. but i did tell the president and you that we would do our best to be ready for the hearing before the july recess. i think we did our best to have a good hearing, perhaps people will think we did. we are now in position to vote in committee today, well before the august recess. and that meets the goal that you and the president asked to us meet. i don't think it's at all inappropriate that we take some
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time and be prepared to ask questions and think about the nominees. senators are so busy. the american people are busy. and they are entitleto have some time to think about the nominee before we go forward. and i just would say that we have sort of different roles in the process. and i feel like that you are -- you gave us the respect that any minority on the committee would be -- would ask for. and to keep moments in this process, but pushed us pretty hard, too. >> pushed myself pretty hard. >> yes. on the question, you mentioned "wall street journal," a great organ of economic freedo and they raised the question about recusal. that's what happens when a nominee is made public and people ask questions. and we thought it was a good question to ask about before the vote. and i'm gl that we were able
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to do that. i don't think yone sought to disparage justic marshall who was a courageous giant of a man in fighting for civil rights, but did have an activist view of the role of a judge. and i do think that you well to quote sir thomas moore. and i would just note that the law is a protection, but you have to follow it. and you have a rht and keep and bear arms. the judge should give that protection to people. and the right to other issues that you're entitled to have should be plainly interpreted. as we deal with the confirmation to the supreme court, i thought about it, a lot of people have discussed the role of the senate. it's pretty clear that the senate, along with the president, he nominates, are empowered by the constitution to
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constitute the supreme court. to put the nominees there. and the president that does get the nominating, any nominator should be given some deference. but it ultimately is an executive/legislative diussion about who should be confirmed to e court. constitutional responsibility to provide advice and consent to nominees to the supreme court is one of our most significant. it's not a coronation, but a confirmation. we owe it to the american people, to carefully examine any nominee, who may serve in the case of this relatively young nominee. 30 or even 40 years, if she served as long as the nominee she's replacing. and as you said, we want to be sure that whoever serves on that bench is fair. when justice sotomayor was
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nominated, she had good experience, as i said at that time. as a matter of fact, an exceptionally fine background for the court. the kind i like to see. when the president nominated elena kagan ixpresse my concern with her lack of experience. not for the lack of judicial experience, but for the lack of a robust, legal experience. there have been other supreme court nominees who did not serve as judges prior to their nominations, but for the most part, these justices have spent a number of years in the fu-time practice of law before joining the court. they spent yars trying cases, drafting, arguing motions. taking depositions. that's the kind of legal experience, day in and day out, practice of law that forces clarity of thought. that's the kind of experience that separate's thelawyer's layer from the political lawyer. miss kagan does not have that kind of experience. she just does not. instead, much of what she's done
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has been defined by her involvement in politics. that's not disqualifying. but the american people must know that a nominee for a federal supreme court will set their politics aside when they put on the robe. more fundamentally, we must be assured that a nominee approaches legal questions dispassionately, objectively, like a lawyer's lawyer, and not like a political laer. so when i asked questions during the hearing, i was listening not only to the substance of her answers, but also to the w that she answered questions. because it tells you a great zeal aboutow someone approaches law. i wanted to note whether she would give the pe of careful and clear answers that demonstrate objectivity and clarity of thought. or whether she would attempt to obscure and spin the truth. unfortunately, throughout the testimony, i believe, solicitor general kagan, repeatedly chose to provide the committee with political spin.
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rather than clearly and honestly admitting or describing events that were objectively capable of description. and i was quite surprised when miss kagan denied the reality that she had banned the military recruiters from harvard's recruiting office, really in order to punish them because of the "don't ask don't tell" policy. that policy, of course, was not adopted by the military, but by congress. and it was signed into law by her former boss, president clinton. her testimony regarding this issue was at best accurate, and at worse, intellectually dishonest. first, she claimed at all time during her tenure, the military had good and full access but this is simply not the case. the military lost an entire recruiting season at harvard in 2005. internal pentagon documents show
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under dean kagan harvard was, quote, playing games with the air force. one e-mail said, quote, that the army was stone walled at harvard. miss kagan teified that the student-led group stepped in support the military effort when harvard would not. yet, the veterans stated openly at that time, they could not take over because they were not equipped for the task. they were not happy about being asked to fulfill that role. second, she testified in banning the military from the campus recruiting office, she, quote, always thought we were acting in compliance with federal w. but again, while this might be -- might sound good, it's just n true. miss kagan clearly knew, from the time she announced her decision in november of '04 what her actions violated the law. in fact, she wrote in an e-mail to the harvard community, acknowledging the solomon amendment was still enforce, but
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that she had banned military recruiters in the hope that, quote, the federal government would choose not to enforce, closed quote, the law. she did not always think, did not -- using her words -- quote, always think she was acting in compliance, closed quote, with federal law. rather, she hoped the federal government would choose not to enforce the law. those are two very different things. and i would expect clarity of her answer. third, i was surprised that -- to hear her defend actions by claiming it was good enough to grant the military the second-class access through the veteran-led organization. again, it was not good enough. and not right. miss kagan knows better because she first challenged the solomon amendment in the third circuit. she made this argument. but when congress strengthen the law in 2004 to mandate equal
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access, miss kagan knew that argument was no longer plausible because when she challenged the solomon amendment in the supreme court, she changed the argument, claimed instead that harvard did not need to allow military recruiting at all. the supreme court flatly rejected her theory unanimously, calling it, quote, rather clearly not what congress had in mind, closed quote. despite the clear record, at her hearing, miss kagan returned and again claimed she believed that directing the military to work through a student group and n the campus recruiting office was good enough to comply with the solomon amendment. in other words, she argued before this committee what she did not argue before the supreme court, because she knew that was not a plausible argument for the court. the bottom line is this, when miss kagan chose to block military recruiting, the law was
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crystal clear she knew she was defying thelaw. her claim to this committee that she thought she was complying with the law is not accurate. rather than admit what she did and explain it, she chose to spin the facts in away that was at best misleading and at the worst, dishonest. miss kagan's testimony regarding her actions in the witt case, with the "don't ask don't tell" law was challenged, was perhaps even more disturbing to me, despite thelear record, she denied the reality that she advocated her duty as a solicitor general by refusing to effectively appeal the witt decision. i spoke at lenh ago her actions on the senate floor yesterday. and you will be pleased that i will not go into the details now. but the fact of the matter is that the witt decision placed the "don't ask don't tell" law, a law thathe has stated
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repeatedly she personally abhors in serious jeopardy and has made it unworkable. miss kagan chose for reasons she stated not to seek an interlocutory immediate supreme court review of that decision. at her hearing she claimed that, quote, the question we had to decide was whether to challenge that ninth circuit decision at an early stage or at a late stage of the case, closed quote. her answer left the false impression that the government had to choose between appealing a decision then. or later after trial. but, again that is not true. the government could have taken two bites of the apple and should have, if the court did not grt their interlocutory appeal, they would still have the right to appeal at the end of trial. as solicitor general, she knew that. she also testified she believed
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it, quote, would be better to go to the supreme court with a fuller record, closed quote. but the ninth circuit ruling was clearly contrary to prevailing supreme court case law on deference given to military policy. and miss kagan herself described that case law at her solicitor general confirmation hearing when asked about that. and there's no question that ss kagan personally knew t damage it would cause the military's interest if the witt case was allowed to go to trial. according to the plaintiff lawyers from the aclu they were invited to meet wi miss kagan before she made her final decision to block supreme court review. and the plaintiff lawyers were told in no uncertain terms that such discovery as being proposed by the ninth circuit would enormously disrupt the military. her decision not to appeal pued the government into a disruptive trial process. with full knowledge that it would damage the military's
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interest. perhaps more importantly, she failed -- she failed to appeal that decision when she knew that letting it stand would do damage to the "don't ask don't tell" law. a law she abhors. rather than admit and discuss this honestly, i think she provided more political-type spin. 's very dfficult t to include that her personal policy objection played role in this decision. i think it was a failure to do her duty. and she promised specifically that she would defend "don't ask don't tell" aggressively before the committee. mr. chairman, there are other issues i know others would like to talk about. i'll for all of the reasons i've discussed i cannot support her nomination. >> thank you very much, senator.
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senator specter. >> i begin by complimenting you, chairman, and ranking member sessions for conducting a dignified hearing in good humor n notwithstanding the great controversies engulfing our institution today. >> i appreciate that. i tried to follow the lead that you showed in the two hearings you conducted of the supreme court, senator specter. >> well, you have outdone any such lead. in coming inhe public entrance i saw an enormous crowd outside and it is a testament to the importance of this proceeding. this is the unique intersection of the three branches of government where they all come into play and that is why it is
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so important. as i passed the media gallery and it is filled and the laptops are all up and working, i asked a question as to why there was so much interest here, there will not be any surprises here, not a word that hasn't been spoken again and again and again and i got the reassurance that they were playing computer games, so i was interested -- i was interested to hear that. i intend to vote aye on elena kagan's nomination to the preme court with gve concerns, which i have expressed because of her failure to answer questions which i think ought to have been answered and i say that especially in the context of her now famous article in the university of chicago law review
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where she chastised nominees by name, justice ruth bader ginsburg and judge stephen breyer for stonewalling and castigated this committeeor not doing an adequate job in eliciting answers and when she came before the committee, it was a repeat performance. and my ultimate judgment to support her is because of two of her answers. while she didn't say what she thought, she did identify former supreme court justice thurgood marshall as a role model and as she follows marshall and i think she will based on her background, she'll be in the right place ideologically and
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then her answers on television which i think are very important inituti institutionally as we look at the issue of separation of power, wch is of great, great concern to me and it has been of -- a concern to me in the many nomination proceedings i have participated in in pressing -- in pressing for answers, because colleagues, we have seen an enormous reduction in congressional power, and it has gone on under the radar, and candidly we haven't paid enough attention to it institutionally, and we complain about activist judges and it depends upon whose ox is being gored. i am sorry but not surised to see the partisan split on this
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nomination because that reflects the ideological battleground that is going on in the supreme court today. but whether you are on one side or the other of this ideological battle, the country is being hurt, the constitution is being hurt, the government is being hurt when congressional power has been taken away and i've been very specific and i'll only summarize it only very briefly. where you have a case like morrison protecting women against violence, gigantic record, you have the court saying it is unconstitutional because of the congressional, quote, method of reasoning, closed quote, i wonder what's going on. is there some radical transformation when the witness leaves the spot where the chairman is now sitting facing
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the panel, walking across the green to the supreme court? what's going on there? what's the method of reasoning? but when you have the chief juice and the associate justice alito testifying about the great deference to be paid to congressional fact finding and make no mistake about it, they said bluntly it's a legislative function, it's not a judicial function. when you start to make -- find facts in the court you're legislating and then what do they do in citizens united? long concurring opinion by the chief justice where he took back all his testimony. took back all his testimony on stare decisis and on the separation of power on legislation. there you have 100,000-page
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record, the problems of funding and the political system critical to our institutions and the supreme court declares mccain/feingold unconstitutional, reverses a relatively recent supreme court decision in austin, which set the parameters for how you regulate campaign finances and they say it is an aberration. well, i guess roe versus wade could be an aberration. i doubt that brown versus board of education is an aberration but who knows whenou have the powers being taken on by the court. and then the cases the court doesn't decide and i've spoken about them at length and won't repeat it. but you have the sharpest conflict i think in the history of the country between the executive on warrantless
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wiretaps as commander in chief, terrorist surveillance program and congress for an intelligence surveillance act, the exclusive way to get a warrant, well, it's disregarded. the supreme court won't decide the case. comes up to them on cert and they duck it. they don't even say why they won't decide it. at least the 6th circuit had a flimsy excuse on standing, didn't compare to the dissent, and then you have the case of the survivors of victims of 9/11 or the locaust survivors and they won't take the case and i press to see at least what cases miss kagan would take. on the one question, which i think her refusal to answer was totally indefensible was the one on the standard that she would apply on sufficiency of a record. for years there was a rationale basis test, the congress had a
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rational basis, was constituonal, reformed most recently in 1968, been a few years ago out of the thin air the court comes up with a test of congruence and proportionate. nobody know what is that means. justice scalia said it was a flabby test and it was designed to allow the cot to legislate. well, of all her pontificating and the law review article, that isne standard you think she would have answered, but she didn't do it. ll, where do we go from here, colleagues? after justice scalia wouldn't answer any questions in his nominating proceeding, senator
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deconsiini prepared a resolution on what ought to be asked and when judge bork came up that seemed unnecessary. well, it may be necessary again. i leave that for wiser heads at a later date. but what i think we can do, what i think we can do is to shed some light on the supreme court so that the american people understand what is going on. and i think if the american people understood what was going on they'd be madder than hell about it. stuart taylor has a good standard as to where to head on this subject, a noted commentator on the court. he says that the supreme court is going to continue to do what they do. it's an article, why the justices play politics in last week's "post" and says they'll continue to do what they're doing as long as they stop short
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of infuriating the public. that's an interesting standard, the infuriating the public standard. well, here is one member of the public who is infuriated, but there are not too many who join me. but i think if we moved to television, we would shed some light it. supreme court decided in 1980 in the richmond newspapers versus virginia case that there was a right for the public to be inside a courtroom. the trial judge excluded newspaper people from the criminal trial a the court said you can't do that. the publics entitled to know. well, in a day when we get our formation from tv a electronics, we ought to know. senator biden and i wrote the supreme court on gore versus bush versus gore where the presidency was decided by a single vote. the chief justice wrote back and
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said, no tv. but they did put out an audio and now the crt turns down even the audios on a fairly timely -- fairly timely basis. this committee on a number of occasions voted out televising the supreme court. i think there's a goodchance we're going to get a vote on it in the not too far distant future and i think that that is really where we have to go because i believe if the public understood if the court decides all the cutting edge questions they've taken a lot of power for themselves and they've taken a lot of power and given it to the executive and we really ought to stand up and raise hell, colleagues, institutionally for congressional authorit thank you, mr. chairman. >> thank you and i if just might, senator graham just for a
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moment, one, i agree with the senator on televising. it is one thing as we all know, it is more difficult to handle the balance in a tri and a jury trial, you do have cases that you're going to protect the identity, for example, of a minor and things like that but that's a mechanical matter. in an appellate court, it is the easiest thing in the world to set up unobtrusive cameras. i wonder -- we have -- i've been in the u.s. senate ever since we put cameras in there. first i kind of noticed them. i couldn't tell you how many cameras there are there. i don't think any of us could. we just know it's televised and done unobtrusively and i might note that the senator's statement on this ought to be required reading in law schools. >> mr. chairman, can i join in
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that and just say, i appreciate senator specter's remarks. he has been a principled member of this committee for vy many years. the statements he's made represent deep feelings and principles that he's advocated throughout his time regardless of which side of the aisle he sat on and i believe we should all aspire to reach that same level of legal skill and acumen. thank you, senator specter. >> as i said, i hope that statement is required reading in law schools. senator graham, you've been ry patient. please go ahead, sir. >> thank you, mr. chairm. i would like to add my compliments to you and senator sessions for conducting what i thought was a respectful sometimes informative, sometimes disappointing hearing. but in the day's environment,
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it's a tough political environment out there where just a little over 100 days away from an election i thought you both handled yourselves well. i thought jeff played the role of a law position in a credible honorable manner and senator leahy moved the ball at a fast pace but i thought at the end of the day we could handle the pace. if you're looking for a way to infuriate the public just do what we are we'redoing, congressional approval rating is at 21% and i often wonder who they are and what are they like. and so i understand exactly what senator specter's been saying about the court but we have to remember we can criticize the court and that's great. the court is a pretty fragile body. they don't have the ability to criticize us. i guess sometimes the written opinion they can. so i'm a little respectful of that, that, you know when you appoint someone to be a judge for life that's a tremendous responsibility on that person.
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but at the end of the day, independent judiciary has served us well and i don't want to see that erode any further than it's been eroded in recent times. now, about the hearing, i thought it was better than most but i agree with senator specter it fell short of what we hoped to have, but at the end of the day the hearings are important. they give you an opportunity to evaluate the nominee but there are certain things you can't comment on. i mean if you think that same-sex marriage isrohibited by the constitution i doubt this is the place where you would say it since that's what you'll have to decide sooner rather than later but the prior statements you make need to bevaluated and think my colleagues put solicitor general kagan to the test and there are plenty of reasons for a conservative vote no. very, very good reasons but i think there is a good reason for a reason to vote yes and that's provided in the constitution itself.
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and we all talk about the constitution as we should be as the foundation of our democracy here, but as to miss kagan, i thought she was smart, i don't think anyone has questioned that. that's good. if you're going to be on the court, good to have smart people there. she was funny. that goes a long way in my book. that shows some self-confidence that you can laugh at yourself. that shows that you're pretty comfortable with who you are. she has an impressive background. she's academically gifted. she's liberal. that one caught me by surprise but, yeah, she's liberal. sort of expected that actually. when it came to being solicit general, i think she's handled herself pretty well. some of my colleagues have problems the way she represented the government. i understand their concerns but genelly speaking i thought she's done a good job representing our nation on terror issues which are very, very important to me. we'll have a lot of news being
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made today. the prime minister of great britain and president obama are going to be meeting today to talk about afghanistan so let's remember there is a lot going on and we're at war. so i think she understands we're at war. when it comes time to evaluate people, i tend to listen to what people who have known the nominee longer than i have, what they say. and particularly impressive when a conservative can say something good about a liberal. that's being lost in this country a bit. and it's vice versa b miguel estrada's letter really hit me hard. he said if such a person who has demonstrated great intellect, high accomplishment and upright life is not easily nfirmable, i fear we will have reached a point where no capable person will readily accept a nomination for judicial service. well, i'm not so sure we're there yet and hope we never get there but we should be mindful of. that's a good caution from
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miguel estrada about the senate and where we're going and where the nation is going when confirming judges. i asked for elena kagan to write a letter more miguel and being a smart person she took me up on my offer. and pretty bad if she hadn't. so i expecteher to write the leer but here's some of the things she said. in my judgment miguel would be absolutely superlative in either role for sprocket or appellate court. i spent a great tideal of time with him and when i came dean of harvard law school i asked him to serve on the visiting committee which is an advisory body made up up of some of the most distinguished students and dealt with him on several sensitive matters during my time. he is an extraordinary lawyer deeply knowledgeable on all aspects of our legal system and thoroughly responsible in his gal judgments of the he is a towering intellect. a prodigious capacity for work
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subjecting his own beliefs and intuitions to the full norris of his analysis and talents. underneath a sometimes gruff exterior, he has the proverbial heart of gold. no one i know is a more faithful friend and a more fundamentally decent person. now, that gives me hope that people who were law school classmates have taken different paths in terms of legal philosophy and political interaction can at the end of the day say ni things about each oth. what does that mean? i don't know if it means much. it just makes me feel better an i think it would make a lot of americans kneel better if we could react that way to ourselves a bit. now, about the military and harvard, the don't ask don't tell policy in the view of many is discrimination unfair and unsound. some of us who support the policy as is written take a
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different view. it's okay to disagree with me. i hope it's okay if i can disagree with you about that. lawyers challenge the law. she challenged the law and schools and organizations make political statements all the time in this country. i hope that's okay. in my view harvard's position on denying full access to military recruiters to their law school said more about harvard than it did the military. it was their right to do so within the law and the big loss is not the military's loss, but harvard's loss. because i can't think of a more noble aspiration or cause for a lawyer to serve than serve his or her country in uniform. having said that, the policy changed in 2002 when the bush administration came in in 2005 it was reinstated where the military was not given equal
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access. in 2005, more harvard graduates entered the military than any time in history that we've been following so at the end of the day it didn't affect, it actually helped, f some odd reason to get people from harvard law school to enter the j.a.g. corps. if i believed she had animosity in her heart about those who wear the uniform i would easily vote no. i don't believe that. i don't believe that because of the people who went to harvard who are now in the military and spoke very eloquently about how she, elena kagan, inspired them. so at the end of the day, this harvard law school exercise said more about harvard than it did point military and i want to put it in its proper perspective and i believe that she is a loyal
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american, very patriotic and loves the military as much as anybody else. and she hired conservative faculty at a liberal school. that shows she's willing to reach out. judge barack was her hero, the israeli supreme court justice. that threw me for a loop but at the end of the day if judge barack can be her hero and she get confirmed i hope judge bork can be a conservative's hero and y'all confirm that person. now, what was i talking about in terms of the constitution? i'm going to read to you if i can find it her federalist number 6, alexander hamilton, indicates that the senate should have a special and strong reason for the denial of confirmation. he continued to what purpose then require the cooperation of the senate. i answered that the necessity of their concurrence would have a powerful though in general a solid operation. it would be an excellent check
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upon a spirit of favoritism in the president would tend generally to prevent the appointment of unfit characters from family connection, from personal attachment and from a view of popularity. 73 of the 126 supreme court nominations that i've been informed by my staff and hope th're right were done without roll call votes. something is changing. when it comes to the advise and consent clause. all of us abhore judicial activist because it is a threat when an unelected judge takes on a role outside their sphere. the question i have for the body, are we living in an agef legislative activism ere the words haven't changed in the last 200 years but certainly the voting patterns are. the confirmation hearings themselves certainly have changed. what does it mean?
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senator obama was part of the problem, not the solution. one of the problems he has is when he had the role of advising consent he sort of turned it upside down and talked about qualifyings and temperament being about 70% or 80% and what's in your heart being the last. what's in elena kagas heart is that of a good person who adopts a philosophy i disagree with and "the washington times" wrote an editorial on three good reasons i could vote no. i could give 100 reasons if i based it on my voight on how she disagrees with me. no one spent more time trying to beat president obama than i did except maybe senator mccain. i missed my own election. i voted absentee. but i understood we lost. president obama won and i've got a lot of opportunityo disagree with him. but the constitution in my view
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puts a requirementn me as a senator to not replace my judgment for his, not to think of the 100 reasons i would pick somebody differently or pick a fight with miss kagan. it puts upon me a standard that stood the test of time, is the person qualified? is it a person of good character? are they someone that understands the difference between being a judge and a politician? and quite frankly i think she's passed all those tests. to say that the job of being a senator is a rubber stamp is not true. mr. lment u, i will not vote for. mr. haines, me and senator specter gaveaines a hard time because i didn't think he understood the difference between politics and the law. there will be a time when i disagree but it should be the
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exception not the rule. so in conclusion, we are making history, all of us, because by your very time here, you're getting to do something unique and special. what are the consequences of our time in the senate? what are the precedents we are setting? are we taking the language of the constitution that stood the test of time and basically putting a political standard in the place of a constitutional standard? that's for each senator to ask and answer themselves. objectively speaking, things are changing. and they're unnerving to me. the urt is the mo fragile of the three branches. it has no army to defend herself. it has no political voice. it has no lobbyists. you can't be on cable tv.
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you're at a disadvantage, so while it is our responsibility to challenge the court, to scrutinize the court, to put the nominee to a test, it is also our obligation to honor elections, respect elections and to protect the court. i view my role as a united states senator in part protecting the independence of the judiciary and making sure that hard-fought elections have meaning in terms of their results within our constitution. and the election that i am worried about has passed. the election that all of us are concerned about are our own coming up. how do you balance those two? how do you stay within keeping your job and honoring the fact that the people have spoken?
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this i what senator graham, phil gramm said about justice breyer so i'm going to vote for the nominee not because igree with him philosophically but i believe he is qualified and credible. i believe his views though they're different than mine are within the maitream of thinking of his political party. whether i like it or not and i do not, i do not, the american people put bill clinton into the white house. this nomination is a result of that. i'm not going to stand in the way of it because i differ philosophically with this nominee. i'm going to vote for him and that doesn't mean i'm pro-choice. i'm very pro-life. i'm going to vote for him because i believe that the last election had consequences and this president chose someone who was qualified, who has the
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experience and knowledge to serve on this court, who's in the mainstream of liberal philosophy and understands the difference between being a liberal judge and a politician. at the end of the day after the hearing it was not a hard decision for me to make. i thought she did a very good job and she will serve this nation honorably and it would not have been someone i would have background i have concluded that she cannot be the kind of justice the court needs and therefore i uld oppose the nomination. >> thank you. we will keep the record open. i will include in he. the poll shows the vast majority of americans disagreed with the citizens united case
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[ taking vote ] >> we will show the retirement ceremony for general stanley mcchrystal tonight at 10:15 p.m. eastern on c-span.
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>> tomorrow, on "washington journal," ,lee refuse senator clinton's trip to china. then a discussion with kweisi mfume, political commentator sophia nelson, and leonard stein horn. and description of how on-line tools and social media sites are used to promote the progressive agenda. "washington journal," live at 7:00 a.m. eastern on c-span. >> this weekend, former "new rk hoyt.es" etter claer >> i worry about moving

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